Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

11 November 2009

It's a Job, Not an Adventure

In this time of job losses and economic hardship, it's especially frustrating to see people who have jobs not doing them.

One of the biggest problems with so-called "tort reform" is that it's so one-sided: It focuses exclusively on "frivolous" claims without considering frivolous defenses and/or unfair defense tactics. One (and only one) recent counterexample from Connecticut is notable for the bar's absolute refusal to do its job:

Mark Dubois, the state's chief disciplinary counsel, is familiar with the case, but said no grievance has been filed against [the defense counsel]. "Sometimes judges just like to handle these things themselves," Dubois said.

Bluntly, that's exactly wrong. If the purpose of the ethics rules really is, or includes, protection of the public, the fact that a judge found it necessary to go on record in litigation involving actual parties with sanctions that the judge was not obligated to issue, for reasons that the judge was not obligated to cite, mandates at minimum a parallel proceeding by the regulatory authorities in order to protect the public (and the profession itself), even if the proceeding ultimately concludes that what that judge did was a sufficient response. What is worse is that this does not appear to be an isolated instance for that particular lawyer; it certainly isn't for that particular insurance carrier. Instead, just about the only way that defense counsel can get sanctioned by bar regulators is by mismanagement of client funds, or being stupid enough to get caught actually destroying evidence  in short, actual dishonesty; and that's not just in Connecticut, either.

Over at Madisonian, Professor Desai attempts to wrestle with the concept of "out of print" in the context of the GBS. It's certainly a worthwhile piece to read... even if it doesn't wrestle with the deeper problem of determining when a work is out of print under publishing industry custom, let alone what that means for authors who have received reversions; or not received reversions for works that are nonetheless out of print; or whose publishers have gone out of business without formally reverting; or... you get the idea. And that's probably a good thing (I'll just whisper Rosetta Books(PDF) and let you ponder how that decision makes the inappropriateness of the GBS settlement even more obvious, because I have no shame and take vicarious glee in your impending headache).

Oral argument before the Supreme Court on Monday in a patent case has some interesting implications for authors. In re Bilski concerns the patentability of "business methods," and presents an opportunity for the Supreme Court to reverse one or both of some bad decisions from a decade ago (the State Street Bank duology)... and, short of that, to at least limit patents to what patents are understood to cover. At a deeper level, though, Bilski asks a question in pure logic, based upon a premise we are not allowed to question: Given that we cannot rewrite the IP Clause of the Constitution, must all forms of intellectual property fall under the same rubric, the same reasoning, and the same evaluation of what will motivate "Progress"? If the Court does its job  and the oral argument indicates that it intends to do so  it will answer a resounding "not only no, but hell no!"

One might formalistically say "But this is an illusory question, as some intellectual property is already outside of the IP Clause: Trademark arises under the Commerce Clause." In one sense, that's true, but it's a formalistic distinction without a difference. Both the IP Clause and trademark law are founded upon purely economic motivation as being both necessary and sufficient for "Progress in the Useful Arts and sciences" to occur. And, in a sense, this is where Bilski comes in: Does a business method pointed purely at an economic consequence constitute such progress? I think the answer is plainly "no," which in turn demonstrates why (without even parsing the statute) the proposed "plot patent" is fundamentally invalid. Parsing the statute and application, of course, makes that even more obvious.

It is precisely this deep question, though, that is ultimately at issue in Bilski: What does "Progress" mean? Does delineating an opportunity for economic profit (in the mixed-up world of business litigation, remember that "avoiding a loss" constitutes a form of "profit") result in "Progress"... and if so, is that "Progress" in the "Useful Arts and sciences"? And if not, could Congress nonetheless determine, under its Commerce Clause powers, that tying such a specific opportunity/method into its implementation of the IP Clause is a good thing? Fortunately, Bilski does not need to answer this last question, because it's not before the Court: Reading the Patent Act (in particular § 100(b), as Professor Risch explains) demonstrates that Congress has not (at least not yet) so asserted. Someone will have to do this job eventually, and sooner would be better than later; however, Bilski itself is too soon, so (unlike the other items on this sausage platter) failing to state an answer will not reflect the Court not doing its job.

And happy Veterans' Day to my fellow veterans. I'm now off to harass local businesses about their inept flag display on Veterans' Day.

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

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Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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